IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF ARTICLE 56, COUNCIL REGULATION (EC) 2201/2003
B e f o r e :
| A Local Authority
|- and -
The Foster Carers of S, FC1 and FC2
S (A Minor)
Re S (No. 3) (Care Proceedings) (Article 56: Placement in the Republic of Ireland)
Mr. Dorian Day of counsel (instructed by Hecht Montgomery Solicitors) for the mother
Mr. Mark Calway of counsel (instructed by Morrison Spowart Solicitors) for the father
Mr. Michael George of JWP Solicitors for the foster carers
Ms Evelyn Norman of Jones Myers Solicitors for the child
Hearing date: 18th – 20th, 25th – 27th March 2019
Judgment circulated in draft on 27th March 2019
Final judgment handed down on 3rd June 2019
Crown Copyright ©
Parties, applications, issues, positions
a. that S should continue to live with the FCs;
b. that I should make a special guardianship order in favour of the FCs; and
c. that S should have supervised contact with M and F after the making of the order.
a. that there is no reasonably realistic prospect that it will be in S's interests to return to the care of her parents during her minority, and so the placement with the FCs should be considered as likely and intended to endure throughout S's minority and beyond; or
b. that M and / or F can be considered sufficiently likely to effect significant changes in their psychological functioning and general circumstances to justify considering the placement as in essence temporary; for various reasons set out more fully below, the parents' positions have coalesced around a target period, at which they would be able to demonstrate that they could safely and appropriately care for S, of no longer than about two years from now.
a. the need for this court to set in place a contact regime, for the benefit of S, the parents and the FCs, which is not susceptible of challenge by way of re-litigation in the immediate future,
b. recognition of the fact that there is much to change in S's life over coming years and that those responsible for looking after her should have a measure of discretion in when and in what way to reach the relevant decisions; and
c. acknowledgment that, while future litigation is likely to be unsettling, it would be wrong to contemplate an order of this court when S is 18 months old depriving her parents of a right to access the courts of the RoI for the remainder or any significant proportion of her childhood.
a. that M had (at that time) ongoing thoughts of a sexual nature in respect of children and that she has masturbated to them;
b. that M posed (at that time) an ongoing risk of sexual harm to children;
c. that M had accepted having caused physical harm to a child and having derived pleasure from doing so;
d. that there was a real likelihood of M acting on her thoughts.
'I am satisfied that if [Y] were in her father's care, whether or not her mother was also part of her care, she would continue to be affected by her father's anger. If he comes up against anyone who disagrees with him, who challenges him, particularly where his daughter is concerned, I think he will react in the same way.'
The judge found as facts that that there had been 'arguments and physical aggression between the parents' and that F had 'anger management issues'.
'Neither parent seeks to make any application to reopen in any way the findings made by HHJ Lynch in proceedings LS 13 C 00313 concerning [Y] and accept they are bound by them. […]'
3. My decision and this judgment represent the latest in an unusually long series of court decisions relating to the appropriate jurisdiction in which questions of S's future welfare are to be determined:
a. 8th January 2018: the District Court in the Republic of Ireland granted an application that the Irish court request the English courts to assume jurisdiction;
b. 6th February 2018: that decision was upheld on appeal in the Republic of Ireland by HHJ Donnabhain; the request was made of the English courts;
c. 27th February 2018: MacDonald J, sitting in the Family Division of the High Court of England and Wales, made an order nisi accepting the transfer of jurisdiction;
d. 12th April 2018: Francis J, having heard the parents' objections to the same, made a final order accepting jurisdiction – reported as  EWHC 939 (Fam);
e. 29th October 2018: Mr Damian Garrido QC, sitting as a Deputy High Court Judge, gave a judgment arising out of a hearing on 10th and 11th October 2018, rejecting the parents' application that the English court request the Irish court to assume jurisdiction, in short, to take their case back again – reported as Re S (Care Proceedings: Article 15 Second Transfer)  EWHC 3054 (Fam);
f. 3rd December 2018: Baker LJ refused M's application to appeal the judgment of Mr Garrido QC;
g. 15th January 2019: M issued a further application that this court ask the Irish court to assume jurisdiction.
'reflects current scientific, empirical, clinical and professional judgment rather than just clinical judgment or just actuarial assessments because there is a large and growing body of literature to support SPJ's superiority over just 'actuarial' (psychometric testing) tools or just clinical judgment.'
The interviews and assessments conducted with [M] showed highly complex post traumatic effects from childhood which continues to influence her emotional and behavioural functioning, and her ability to comfort and protect her children at a fundamental level. Her highly abusive early years formed a template of damage that was not ameliorated within the care of her grandfather. [M] has developed significant psychopathology including vulnerable narcissistic traits, complex post-traumatic stress, and callous and unemotional aspects of personality formation.
She is a highly damaged and vulnerable young woman who is also badly affected by the loss of her children but an inability to countenance her own responsibility in their removal. [M] unfortunately continues to present with multiple risk factors to children. I have recommended a package of specialist long term therapy to help her, and hopefully change her future and lower her current risk.
[F]'s assessments indicated 'disorganised' unresolved trauma from a number of highly negative experiences during his childhood. These cause outbursts of anger that are out of his control. He is psychologically aligned with [M] and unable to act on his individual perspective. In addition, he has been 'triangulated' into the vengeful anger that [M] feels for the majority of professionals who are involved with the family. I have also recommended specific therapy for [F]. Both parents clearly love their children but their individual traumatic pasts have affected their current ability to parent sensitively and with psychological stability to a high degree.
124. [M wrote,] 'I feel like I have been used and abused by [a social worker] to better his career, why me why my family ?and [a psychiatrist] and [a psychologist] and [a social worker and the judges are all happy destroying innocent peoples lifes like my children and mine. I will take them to a criminal court. Justice has to provail, I follow the lord not satan or the devil ! I was abused as a baby why would I harm any children in anyway I am not like that and i know what it does to you I would not wish the abuse that I read the subconcious flashbacks and the anxiety and ocd on anyone'.
125. Such statements suggest that either [M] actually believes that what she says is true, or she is being deceptive. Both positions indicate significant distorted thought processing and also 'delusional' beliefs as some of the details as she presented them came from her own mind rather than reality, but this was not acknowledged by her. The court process has impinged directly on her sense of 'self' and accentuated her use of 'denied true cognition'. This produces very high anxiety and hypersensitivity, and the perception of 'threat' as pervasive.
126. [M] is highly vulnerable and becoming more so because of the severe thought processing distortions she uses, and because she has lost all her children and is now in a state of 'ambiguous loss' caused by the 'relational uncertainty of trying to develop an attachment relationship with her children who are both 'there and not there'; this can produce a very high anxiety'. However, genuinely stable attachment functioning allows individuals to acknowledge their failures, faults, and limitations without defensiveness, anger, shame, and integrate positive and negative self-representations into a complex but coherent global self- concept. [M]'s assessments indicate that she has little ability to do this.
127. Of crucial importance in my assessment of her is the subject of her veracity. In her case 'truth' is associated with a substantial distortion of information. Those distortions involve information which is incomplete, ambiguous, irrelevant, and misleading to both her and others. Unfortunately, as previously explained neurological activity in the brain is not geared towards accurate representation of the past but is organised to predict the need to protect the self and develops through attachment relationships. This explains her apparent belief that what she says is both accurate and truthful and the very high level of distress she shows when she feels challenged.
Traditional psychotherapy addresses the cognitive and emotional elements of trauma, but lacks techniques that work directly with the physiological elements, despite the fact that trauma profoundly affects the body and many symptoms of traumatised individuals are somatically based (bodily based). Altered relationships among cognitive, emotional, and sensorimotor (body) levels of information processing are also found to be implicated in trauma symptoms. Sensorimotor Psychotherapy is a method that integrates sensorimotor processing with cognitive and emotional processing in the treatment of trauma. Unassimilated somatic responses evoked in trauma involving both arousal and defensive responses are shown to contribute to many PTSD symptoms and to be critical elements in the use of Sensorimotor Psychotherapy.
By using the body (rather than cognition or emotion) as a primary entry point in processing trauma, Sensorimotor Psychotherapy directly treats the effects of trauma on the body, which in turn facilitates emotional and cognitive processing. This method is especially beneficial for clinicians working with dissociation, emotional reactivity or flat affect, frozen states or hyperarousal and other PTSD symptoms.
Sensorimotor Psychotherapy is a method for facilitating the processing of unassimilated sensorimotor reactions to trauma and for resolving the destructive effects of these reactions on cognitive and emotional experience. Traumatised individuals are plagued by the return of dissociated, incomplete or ineffective sensorimotor reactions in such forms as intrusive images, sounds, smells, body sensations, physical pain, constriction, numbing and the inability to modulate arousal.
These unresolved sensorimotor reactions condition emotional and cognitive processing, often disrupting the traumatised person's ability to think clearly or to glean accurate information from emotional states. Conversely, cognitive beliefs and emotional states condition somatic processing. For instance, a belief such as "I am helpless" may interrupt sensorimotor processes of active physical defence; an emotion such as fear may cause sensorimotor processes such as arousal to escalate. Most psychotherapeutic approaches favour emotional and cognitive processing over body processing, and it has been shown that such approaches can greatly relieve trauma symptoms.
As I explained, this form of therapy will be very challenging for [M] and she may need support from [F], friends, or a specific support group. However, it is important that whoever supports her has some knowledge of the proceedings so that [M]'s current perception of her past is not negatively reinforced. It is important that [M] does not engage with 'counselling' services as the majority accept client information unconditionally, thus negatively reinforcing and exacerbating entrenched perspectives.
The sensorimotor therapist will also need access to my report in full to have an understanding of the complex issues involved in treating [M]. I have found two possible therapists in the […] area [in which the parents live] but would like to speak to them to see if they are able to do this sort of work.
EMDR is a form of therapy that does not primarily rely on speaking about one's traumatic experiences, but that is able to rapidly and effectively integrate traumatic memories by asking PTSD subjects to focus intensely on the emotions, sensations and meaning of the traumatic experience, while asking to follow the hand of a clinician who induces slow saccadic eye movements.
[F] would also benefit from music therapy, specifically drumming. The amgydala, a structure in the brain, is part of the limbic system that is involved in the expression of emotion, especially fear, autonomic reactions and emotional memory. Dysfunction in this structure is linked with traumatic stress reactions. Traumatic stress alters the way the body responds to stress, affecting mediators such as stress hormones and neurotransmitters. Music therapy plays a protective role and drumming exercises have been found to greatly reduce stress by altering their brain-wave patterns.
In addition, yoga, and horse-riding would also be beneficial. Taking part in such activities might allow [F] to engage in social interactions independently of [M]. [F] would also benefit from support as he accesses therapy which may not be available from [M]. It's likely that any potential therapist would be able to advise on this.
a. it would not be safe for either to look after a child while untreated;
b. it would not be appropriate for a child to be placed with either at some point during what was thought or hoped to be productive and positive treatment;
c. conclusion of the recommended treatment cannot somehow be considered the end of the road, nor necessarily will it mark a point at which a child could safely be placed with either or both; rather, it would represent an advance at which point further assessment and individual or parenting work might be indicated.
a. Sensorimotor psychotherapy. This may be available where M lives. However, she may have to undertake a trip to a larger city to access this, necessitating a two- to three-hour trip in each direction. There is a possibility that the CFA will agree, or can be ordered, to pay for this, although this has not been confirmed. If not, the parents think they might be able to afford this, although on any view that will be a considerable stretch, and, over two to three years, a mammoth commitment.
b. EMDR. Recognised as an effective treatment, this is likely to be relatively easily accessible to F.
c. Psychodynamic Psychotherapy. This is likely to be available where the parents live. There is no evidence as to whether the provision would be met by the Irish health service or the CFA, although F seemed to think (without any real evidential basis for taking this view) that after registering with a GP (which he has not yet done), such therapy could begin within a few weeks. I am not in a position to take a view either way.
Clare Matthew, the social worker
Michael Lynn, Senior Counsel at the Irish Bar
a. S is entitled to assert Irish citizenship, this being pursuant to the provisions of the Irish Nationality and Citizenship Act 1956, and by virtue of her having been born in the island of Ireland (s.6) to parents at least one of whom was, at the point of birth a British citizen (s.6A);
b. in order to confirm her Irish citizenship, the 'act [to be] done on […] [her] behalf that only an Irish citizen is entitled to do' (s.6(2)) will include an application being made on her behalf for an Irish passport;
c. whilst this would normally be done by her parents, if (and I have not asked this) they are for any reason reluctant to do this, the application may be made by the FCs once they are invested with parental responsibility.
David Leahy, Counsel at the Irish Bar
Recognition of a judgment
1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
3. Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised.
Grounds of non-recognition for judgments relating to parental responsibility
A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
(g) if the procedure laid down in Article 56 has not been complied with.
Non-review as to substance
Under no circumstances may a judgment be reviewed as to its substance.
1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
Placement of a child in another Member State
1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.
2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.
3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.
4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.
a. For the purposes of enforcement of the English order, the provisions of Article 28 BIIa (enforceability in England; service on the respondents) are satisfied by an order made in the Irish enforcement proceedings exhibiting the English Annex II certificate, ideally supported by an affidavit of service of the English order.
b. The grounds of non-recognition set out in Article 23(a) to (f) do not arise in the current case.
c. Article 23(g) requires compliance with Article 56. The safest course is to seek an Article 56 consent from the Irish Central Authority. (This approach has been confirmed via advice from the Office of the Head of International Family Justice (England and Wales) as being appropriate when an English court contemplates placing pursuant to a special guardianship with a non-relative (a term of art, strictly interpreted).)
d. Although there is no equivalent in Irish law to an English special guardianship order, such an order can be enforced in Ireland (see Finlay Geoghegan J in Carmarthenshire County Council v C.D.  IEHC 418, High Court, 30 June 2016). It would be 'highly desirable for the English order to provide as much detail as possible as to the meaning and effect of such an order'.
e. An order for enforcement is sought by way of ex parte application to the Master of the High Court; in an emergency, this application can be made and the order for enforcement made on the same day (subject to the availability of the relevant documentation, including an Annex II certificate). (This latter advice was particularly relevant at a time when it was envisaged that the United Kingdom might leave the EC without a withdrawal agreement, so with a fatal effect on the application of BIIa as between England and the RoI, just two days after final judgment was due in this case.)
f. A 'mirror order' would be unlikely to be made by the Irish Court in circumstances where a private international law instrument can achieve the same effect.
g. In the event of a 'hard Brexit' looking imminent, seeking permission to place pursuant to Article 33 of the 1996 Hague Convention would also be prudent.
h. There is no complete clarity as to what orders the parents and the special guardians could seek in Ireland to determine the question of how much contact there should be. It is conceivable that the Guardianship of Infants Act 1964 would provide a jurisdiction to consider such questions.
i. In order to protect against an application being made by the parents seeking to undo the special guardianship order by applying (pursuant to section 11(2) of the Guardianship of Infants Act 1964) to reverse the attribution of the 'custody' of the child, the English order should explicitly be described terms of being a 'final order' (if that is what is intended) and not amenable to variation on the application of the parties. This would make it 'clear to any subsequent Irish court that the domestic provisions on guardianship are to be treated with caution'.
j. If the question of 'access' to the child is regulated by an order of the English court, it is unlikely that it would be open to an Irish court to interfere with the order, as the child arrangements order element of the final order would be deemed a 'judgment regarding rights of access' within the meaning of BIIa and so the beneficiary of a right of automatic enforceability in Ireland under the provisions of Article 41 of the Regulation.
If it is sought to exclude the role of the Irish courts on questions of access, then it is probably preferable that the special guardianship order be accompanied by a child arrangements order. If, on the other hand, it is preferred that such decisions should be determined by an Irish Court, then it is probably preferable that the English special guardianship order should be made alone, and a recital could be added to the effect that nothing in the Order should be taken to interfere with the possibility of an application being made to the Courts of Ireland in respect of access.
Finally on the question of access, if it is intended that the proposed special guardians alone should be empowered to determine the extent of parental access/contact, then a clear recital to that effect should be inserted into the Order, so that insofar as that may be necessary, that distinction can be relied upon to limit the types of application that might be made in Ireland under the Guardianship of Infants Act 1964.
a. she desperately wants to have the opportunity to parent S (and X);
b. she considers that she has wrongly been deprived thus far of this opportunity;
c. she does not accept the findings or conclusions of HHJ Lynch in the proceedings relating to Y;
d. with some reluctance, she is prepared to agree to a special guardianship order, with S to remain placed with the FCs;
e. she sees this as a temporary measure;
f. although she does not accept the need for the same or the psychological assessments of her to date, she intends to procure and engage in the recommended therapy;
g. she fully intends to apply to be in a position in two years (if not sooner) to contend for the care of both S and X.
Angela Powell, the children's guardian
In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (s.1(2) CA 1989)
14A Special guardianship orders
(1) A "special guardianship order" is an order appointing one or more individuals to be a child's "special guardian" (or special guardians).
(2) A special guardian—
(a) must be aged eighteen or over; and
(b) must not be a parent of the child in question,
and subsections (3) to (6) are to be read in that light.
(3) The court may make a special guardianship order with respect to any child on the application of an individual who—
(a) is entitled to make such an application with respect to the child; or
(b) has obtained the leave of the court to make the application,
or on the joint application of more than one such individual.
(4) Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5) The individuals who are entitled to apply for a special guardianship order with respect to a child are—
(a) any guardian of the child;
(b) any individual who is named in a child arrangements order as a person with whom the child is to live;
(c) any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d) a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
(e) a relative with whom the child has lived for a period of at least one year immediately preceding the application.
(6) The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—
(a) an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b) the court considers that a special guardianship order should be made even though no such application has been made.
(7) No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—
(a) if the child in question is being looked after by a local authority, to that local authority, or
(b) otherwise, to the local authority in whose area the individual is ordinarily resident.
(8) On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—
(a) the suitability of the applicant to be a special guardian;
(b) such matters (if any) as may be prescribed by the Secretary of State; and
(c) any other matter which the local authority consider to be relevant.
(9) The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10) The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11) The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12) Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13) This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.
14B Special guardianship orders: making
(1) Before making a special guardianship order, the court must consider whether, if the order were made—
(a) a child arrangements order containing contact provision should also be made with respect to the child,
(b) any section 8 order in force with respect to the child should be varied or discharged.
(c) where a provision contained in a child arrangements order made with respect to the child is not discharged, any enforcement order relating to that provision should be revoked, and
(d) where an activity direction has been made—
(i) in proceedings for the making, variation or discharge of a child arrangements order with respect to the child, or
(ii) in other proceedings that relate to such an order,
that direction should be discharged.
(1A) In subsection (1) "contact provision" means provision which regulates arrangements relating to—
(a) with whom a child is to spend time or otherwise have contact, or
(b) when a child is to spend time or otherwise have contact with any person;
but in paragraphs (a) and (b) a reference to spending time or otherwise having contact with a person is to doing that otherwise than as a result of living with the person.]
(2) On making a special guardianship order, the court may also—
(a) give leave for the child to be known by a new surname;
(b) grant the leave required by section 14C(3)(b), either generally or for specified purposes.
14C Special guardianship orders: effect
(1) The effect of a special guardianship order is that while the order remains in force—
(a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and
(b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).
(2) Subsection (1) does not affect—
(a) the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or
(b) any rights which a parent of the child has in relation to the child's adoption or placement for adoption.
(3) While a special guardianship order is in force with respect to a child, no person may—
(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom,
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(4) Subsection (3)(b) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his.
14D Special guardianship orders: variation and discharge
(1) The court may vary or discharge a special guardianship order on the application of—
(a) the special guardian (or any of them, if there are more than one);
(b) any parent or guardian of the child concerned;
(c) any individual who is named in a child arrangements order as a person with whom the child is to live;
(d) any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e) the child himself; or
(f) a local authority designated in a care order with respect to the child.
(2) In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3) The following must obtain the leave of the court before making an application under subsection (1)—
(a) the child;
(b) any parent or guardian of his;
(c) any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d) any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4) Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5) The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order
a. holds parental responsibility for the child; and
b. may exercise that parental responsibility to the exclusion of any other holder of parental responsibility (subject to any other CA 1989 order).
Given the fact that a special guardianship order cannot be granted in favour of a parent, it can be seen as falling on the spectrum of English orders between:
a. a section 8 child arrangements ('live with') order in favour of a non-parent who, subject to any particular and specific orders, would not be entitled to enforce any decisions over the mother or any father holding parental responsibility, and
b. an adoption order, by which the adopter acquires parental responsibility for the child who is treated in law as the child of the adopter, whereas a birth parent's parental responsibility is extinguished and the child is treated in law as not being the child of any other person. (See sections 46 and 67 of the Adoption and Children Act 2002)
As such, this type of order is useful and used either in underpinning a non-consensual, non-parental placement (where adoption is not in the child's interests) or in ensuring that, even in a consensual, non-parental placement, the child's home and security is protected from being destabilised by the actions, decisions or aspirations of the non-resident parents.
Return to the parents
a. S would be at risk of harm in M's care due to M's anxieties.
b. M continues to pose a sexual risk to her children.
c. M presents a physical risk to her children.
d. These risks are compounded (or at least not neutralised) as F is unable to challenge her; if anything, this particular difficulty has deteriorated since earlier assessment:'[…] [F] is aligned with [M]'s perspective to an extreme degree. In addition, he has attenuated the vengeful anger that [M] uses against professionals to the extent that information from the past is being increasingly distorted as he attempts to comply within his relationship with her. This is an entirely unconscious process.'
e. F poses a risk of physical harm to S. This is due to the combination of his capacity for 'show[ing] anger which is outside his control' and 'his ability neurologically to attune with S [being] compromised because his primary attachment processes are tied to [M].'
Type and longevity of order
a. S would be subjected, by a care order, to long-term corporate parenting which is intrusive and attracts stigma;
b. a care order is not required for S's protection; there is no evidence that it is required for her welfare;
c. there will, in any event, be some ongoing social work involvement; in all likelihood, the LA would delegate its responsibility to the local social care team; they are involved anyway, by virtue of X;
d. the FCs are capable of exercising parental responsibility; a care order would not give them parental responsibility, still less the power to exercise this to the exclusion of other holders; without parental responsibility, the FCs would be required to consult in relation to all but the mundane decisions with the LA;
e. the order would require management from a long distance;
f. there might be an impact on the ability to register S as an Irish citizen;
g. the LA does not seek a care order; given the above, there are no 'strong and cogent reasons' here present to justify its imposition on a local authority (see Oxfordshire County Council v L  1 FLR 70 and Re T  2 FLR 574).
a. that S, and the FCs, are already used to this pattern and frequency of contact;
b. that S has not thus far been destabilised by it, rather, she has been able to settle and to form secure and healthy attachments with her carers;
c. that S is much loved by her parents and that they have shown a huge commitment to contact with her; and
d. that X will be attending contact at this level for the foreseeable future in any event (this being the level set by the CFA during the currency of the two-year care order in place in respect of her).
a. which records in its recitals the current views and intentions of the FCs in relation to contact between S and her parents;
b. which requires them to make S available for contact with her parents 12 times each year for the next two years;
c. which requires them thereafter to make S available for reasonable contact with her parents, this to be decided by them in their discretion, after consultation with the parents, but subject to order of the Irish courts to the contrary;
d. which records in its recitals:
- my intention that my order as set out at (b) (above) is a final order of this court and not to be susceptible to review on its merits during its currency, save that, in the event of a significant change of circumstances which fundamentally alters the assumptions made in this judgment, an application may be made to the courts in the Republic of Ireland for permission to apply to vary; (I include this latter provision, hoping it will have effect in the Republic of Ireland, in response to Mr Day's well-made point that to do otherwise would be to impose a regime stricter even than would be a restriction pursuant to section 91(14) of the Children Act 1989 and which would deprive either the parents or the FCs from having any recourse to a court, regardless of the nature of any supervening circumstances).
- but that my order as set out at (c) (above) expressly contemplates that the Irish courts have jurisdiction to adjudicate on any valid and lawful application made to them.